Document DGYvpwm4X5ZryBRwvw96NbdqN

.. ' ' i..JfoiV1'** .. Ae*MM****44n*4 OMMA*Mtun^i jIlbIML*kbamJ.lhaaMM Laoi Urn** VuinriM<jti DiviateMH <r t m Co/uha.hj#J Tmust MtnTi All. KiaKTOIRKtMrXD vS<tf GP***- GST- '.:f.fe=*. ..; !;*'. > : s'^'-tV r'! V. ' ";- HEQUISI.frON hTTiiSSS 65447. WEST V1AC.IWZ.\ 57^nSME OOUHT OF AREALS. Decided February 14, 1953. DORA JONES, AOil'RIX., ETC, v. niMEU.vi<7 & DENNI3 CO., INC., T At. . Fayette County, Affirmed. t>' f?0^ 1. 1 An employee h&3 right of action at common la's on account '/' of diaeese contracted by him In the course of his employment and ttrl-'::": butable to negligence 0f his employer. ' . ' *4 ... 1 , -here an employee dlea of disease contracted'in the '' .; course of hla employment because of negligence of ills eraployer, the- latter mil. tie liable in an action of damages prosecu Led' by" tha person-,'';--, ai representative of the deceased employee.' Code 1931, S5-7-5, .)' -AH; o. Disease contracted in the course or son rs am ting iron 'i> employment la not corapenaabie under the 'Vest irirgina Compensation Act, i Code 1931. S3-a-I, unless directly attributable to a definite, isolated, . f or tui.CCU-t strHrrMfica . ' " 4. Under the '.`feat. Virgir.a Compensation Act, Code 1931S . 2-t-6, employers are exempt from U.Hhl 1 ' t.y . for iIjsijhs ar. ."..onmcTv lw or by statul.e, for compensable Injury or death of an employee, however occurring^ but ere not'exempt from liability far non-compensable dis ease (caused by negligence of the employer) or death resulting* from--- such disease. NAX77ELL. "i* #&i\l | l ; Ilm cii ac Involves th,, auff ieiency of c declaration 'for demagec for alleged wrongful death. Tha circuit court over-ruled a demurrer to the declaration and each oount and certified its ruling her*. It. U alleged that plaintiff's dec ad ant was a laborer in the , employ of defendant, Rinehart 4 Dennis Company, InC., coctractor in charge uf the construction for The Hot/ Kanawha Power Company of "an under ground tunnel about thirty-two feet, in dianet*.- and about four miles; ' in lenctbj beginning at a point on tha North side ef New River near / the village of Hawks N'est and extending under the mountain to a point '.. ' drii *.h came siic wt vg.LC near Oaul/ JuncUon in Cwui*^, ' West virgins.'1 Xt is further alleged that defendant, ?erxinst wa3 the vice-president and general managef- of the Rinehart 4 Dennis Company, and. "w4b. is motive' chargo , management', supervision,"direcVi'OTr-hwu--'cPTitxed!''' of the construction of taid tunnel for the sold defendant company & r. ." _ , The declaration contains six counts alleging, respectively (1) failure of defendants to provide decadent with a safe place in rhLch to orLra (a) failure to employ cxpni iouced forerntju (3) failure to" adopt- and promulgate proper rules, (>i) failure to \-iard and Instruct decedent . la. to the dangers attendant upon his employment, (5) failure to furnish ; proper tools and equipment, (5) failure to provide for proper circula- ; t Ion of air, Zaoh count allsseo not only negligence on the pert of. the :.f defendants, but also that Lhcy acted willfully, wantonly, and with dc-. i liberate Intention to injure tha plaintiffs decedent. In our opinion.''';:] this latter allegation has r.o bearing on the .questions before ua. ^Tha;/ij| h f> r T t A A & tha ot^lula afe.icjjt. tw i%*$Ur*dl Id appLiaA'dli t d Lft of-jpti *`vil5a situations. The pertinent part' of the statute, self-explanatory, ,'hefde^a "If. injury or death result to-any employee from.the delibarate.' itSnadal|9 t tlon of hla employer to produce '.such inJury; dry <JouC;,j,4!sie. eaplo-ye OnuM#c s^ner. Ik<5,, (.Mtl LJAI* Mi'viaa Bin I WUMPAHY) ML RtaKTB HC*4YtD the widow, widower, child or dependent of the employee shall have the ' privilege to take under this chapter, and Shell also have cause or ac tion eeeinsL Ui- employor c if this trttjtor had *wt bsots enacted for sny excess of declares over the err.ount received or receivable under this chapter," Code 1931, 25-4-2. . _ The burden of tho complaint, permaotlng each count, la trial through negligence of defendants ir. causing and permitting large quan tities of silica dust to pervade and saturate the atmosphere in said, tunnel the plaintiff's decedent contracted the disease iaiownas silicosis of which he died.. It io allogod that muoh of tho atone romoved from the tunnel was more then ninety-nine per centum silica; that corapresood air drills ware used for the drilling of holes in said stone for the purpose of inserting explosives to dislodge the same; that large quantities of . dust arose from this nnrt.tnn; that water was not used in the drill holes to keep down the dust, nor was any other means employed by the defendants to protect plaintiff's decedent from the deleterious affects of the dust- " It It: not alleged in the declaration that the coroorate de fendant is not a subscriber to the state compensation fundi or; being a aubaur i t'-;r. la in default or the payment of premiums to which it was subject, under the act regulations of tus eoBimiebtons r, or that i for some other reason, it id deprived of the protection of the act. This failure of allegation is tho basis of the demurrer. Dcmuiianta rely upon holdings of this Court that ir. actions for damages for personal ' r jury Ac&inet defendants eligible to the protection of tnc workmen's compensation act, there (hurt, be averment of tha failure of -sueh employ er to become a subscriber, or, having subscribed to the fund, is in da- far.lt, JicVav v. c. * ?. Tel. Co . -. 102 Ve, 013; Ouanaa v, G-louora Coo I ftr.. 91 ;.V. Vo., 6.>f,, tin". ' ff aaek3 to Justify the absence of such allegation from ths daciofsi ion by taking the position that ihia case is without the teriiiu uf the aorkman1 a compsnsat Lon act and therefore is not con trolled by tha rsqUirc.v.antg thereof. The plaintiff's position is based, on four propositions: (1) an employee has right of action at common law for damages for disease celifted by negligence of his employer; (3) under our counterparf. of Lord Campbell 'r .'ot, if auoh employee die of a disease so contracted, his personal representative may maintain ac tion for tha wrongful. d*+,h; (5) diabase, wnsltmr coctipfl t f. or.wl (no specific negligence of employer involved) or whether non-oceupatione.1 out attribute''1 A r.o ne-llgenoe of *rr.ployar, l not cftSiftOTftaabla, under tho 'Seat VLrgina Compensation Act; (4) the compensation act exonerates employers from cotjmon law liability only in compensabla natiara. The defendants neither affirm por dany that occupational disease is compensable under cut statute. They assert that that ques tion is not. involved in the problem before the Court. Their primal " and basic proposition is that the compensation act relieves subsorib- ing idiplays^s,, nut in dwf*ultr f i otu li*.Lilit/ rwnpond iai for injury or death of an employee, however occurring, regardless of. whether mere be involved a compensable or a non-compenSable injury, Thla position is sought to be urounJed. on the following ieclion of. the workmen's compenaation act: (i "Any employer subject to this chapter who shall elect to pay into the workmen's comoenaatlan fund the prsmiums provided by this chap ter shall not be liable to respond In damages at common lew or rty sta- . . Lute for the injury or death or any employee howevsr occurring, arter sueb election and Curing any period in nhlpa such employer snail not be In default in the payment of such premiums and shall have complied fully wita all Other provisions of this Chapter; Provided That tha injured employee Haft reiiiaiuvO li> til eef/ice with uulluu tiOUt hie employer l,aB i i elected to pey into the workmen's compensation fund ths prcm'.umo pro- , ] Tided by tnis chapter, The cont) nuati.on in tha servios of such employer i ; with such mil, l.-.w ll!. ho deemed s waivar by tha aaployeo and by the - ! parents of any minor employee of the right of action as aforesaid, which I the employee or hia or her parents would o'therwiee have." Code 1931,v " .1 1 23-2-6. ' f\ r% /"t MM Ml 'm\. *, 'V Ch*ni"a MdUtL lnfi LCA* 9UVI6I OiVIIION Of THf CQN*ORnOM f*UIT COMPAMV, AU, HHMTI BlUltn u The section of oar compensation statute which defines L- urn fja nil a,, A 4 ..-taV&Of -- Affwris: "The coor-isuicner skull disburse the workmen's conipeneatlonfund to tho employees of ouch employers s> are not delinquent in the payment of or--,n)iUvo for the ri.uui.i. ill r.liluh I<ii0 injury uuours J end r.'tio nova otherwise eoir.pllBd fully with the provisions or this chapter, and' whir.!-, nmpl.cyn.jf shall have reoelved pcrconcl injuries in this State in the course of and resulting from their er.ploysient or to the dependents, if any. of such employees ir. case death has ensued, uuourtllng to toe provisions hereinafter made; and also for the exper.sec of the c.-iraintstra tlor. cf this chapter, as provided In section two, article one of this chapter." Code 1531-, 23-4-1. Code 1932, esc. 2526. sim reference to these sections of the statute defendants urge that the prOciu-o questicr. before the heart Is whether plaint iff .'a decedent's injury is actionable in the light of the provisions of sec tion 2516, and not whether it is compensable under section 2526. True- in the lest-aneiysLs, the question of .whether plain-. tlfr'c declaration iriicntt u Cous: of action ust be dm.*reined speci fically ir. the u-m. of section 5516, but in. answering that question the Court,, acting under familiar rules of statutory construction, ..must loch to the v,hole act, and, thinks mutt loo': eoeolally to section is5253 a because cf tiic peculiar er.d necessary correlation tetween that section and auction 2516. Corrvisilun exists because both, sections must be e;:air. r.sd in deterainir.c: the ri.ehto of an injured employee. The vital ler.juuLic cf aection 2515 e::aclir..q tint a:; employer subject to the ccrtpenssitior. ict. not ir. default, "ansi1, not bo liable to respond in daimi^cx at a coin on ia or by statute for injury c r aaatr. cr any employee however occurring1 stcndlJiy; alotij and 1 i '.anally interpreted would seem to custlln the contention cf the d.efendents that an Action for damages by on ei-.pitys: ag&inut an employer for Injury srlslr.-,; from the employ- *i*x%*. v\+ y l 1>j reci in inei wen .noutjti injur/ cr JLlaelaliitv is xis t compensable, But the meaninf, of that clause must, r.ct be determined free. Its cold phraseology alone. Consideration must be given to the back- 5round and purpose of .-n.v-t.vncation act*, to the ovil3 aosyiit to be corrected and the objects to be attained; to the rules of the common -u>: witn raittlor. to right 0f action for industrial injuries and diseases, both occupational and otherwise; to the legislative history of our own act; an! to ail portions cf the act which may be of assistance In det ermining the iiialative intent ,.-itr. roepoot to the sold phraawetogy of iaction 2516, That, at cor,men law, ssaloysss have right, cf action against amnloyaro far accidental Injuries rsoieved by eraplayacs In the course of their employm-r:t through negligence of the employer, cannot he gain said. The rfiperto abound in such cases.. But tho question with which IQ are mors vitally concerned is whether such right exists for damages artelng fi*n-- ?i4,tsoo c.dti-.tl.l tho mh,-s, of swjjloyasr.l thra'ia>! the ueglLi'anss of the employer, Te fi.-yi it stated that at common, lav. an employe* has no right cf action i or injury arising from occupational disease,, Adai-,;; v. ibm T.'htte Lead Color forks, IBS f.! i cl: - 15V, bits! 1n rnduotrlai Comm 1 c c j c n ^ Sr;1.:, . Oli Chic- State f :pts , .SCO , unUer- tcnd that holding to mean that such right of action does not exist in tha employee merely because hn bur. contracted disease as sr. incident eT his employment, in' the absence of a showing of negligence on tha part cf the employer, ae;ito euoh dlaee may urise In spits of ids 'oars of the employer to prevent Lts being contracted by the employes- In such Cir cumstances, It bncomea a rial: of `.no employment raick an employee,, sui juris, must fct presumed is have taken upon himself. But thav an employ ee ha* rtgnl of'cation it summon law for disease arU'ag from his em ployment through the ncgl' gene?, cf the employer seems' clear. Smith v. International High Sneed Steel Co.. (H.J.li 120 Atl. 132; Szalkowekl _ 2__OSbCrnC Cr.. Cri.j'.S lit Atl. c_i; Trout v -. '"lakivire ate.. Coro-. 195 V.T. Supp. 328; Jollim. haul Cj. ... Mtelne. 24? S.'*'. (KyM. S72; CsoneUy t hlr.nsaooUa h'fn Co,. 201 h'(Uinn.) ?05; '<iapne:- -t. Jayne r.hsmiz_ ec.l So,. 23 AM. M'a. ) 772; in rs Tagzslst. llo li.,E. Uiasc.) 972. A t-irce and succinct stst6.ment of the rul; appears In In re Hurle. 104 !':> (Uaaa.) "At coninon law tiia innurrtng of et CiG3ft2o op l\nrm -p health is such, a personal tvron;; a..` to warrant a recovery if the other , _ -I ,'k't'jt tf.-` 1 n n no n? Cw>u*M CUC**lMa Horn*. Inc_ Logic Lxi* ftcavtcs Civilian of Tpik CAnpOAATioh TUv ALL *tmiv RctmvtB elements of liability for tort ars prssiiv.," If plaintiff 'a decedent had rl'kht of action at uoi.uiion law. ' (not taken away from him by the workmen's compensation act) against the del er.dar.1 . then, under our counterpart of Lord Campbell's Act his' ed.aiaiaLratrix hai c right to proaocute thio suit. This io in accord ith the express provision of the statute, The statute reads: '`When ever the death of s person shall be caused by wrongful act, neglect, or default, and the act., n2l act. or default. i3 such as rr-iid (if death had not ensued) have entitled the party injured'to maintain an action to recover damages in respect thereof, then, and in-avary' such case, tha person ".'.io, or the oorporatlcn !licii, would have seen liable if dsafch nad not ensued, shall ba liable to an action for damages, * ' Cods 1931,, SS-T-b, la disease contracted oy an employee in the course of his employment compensable under our statute? Te mink 30j, if the disease ba attributable to an exposure or injury at a definite tine, Conley v.. Compensation Ccglo3loner, 10? ',7-\ra, StS. In that oaue it appeared that i-hs plaintiff-'s decedent nas soldering spouting with a gasoline soldering torch. And that on ihs first day he used tna torch ii;- ex- perienead nsr'Tddc.iaha and neodacni'ar.d on the sseond day na nae suffer ing SO Severely taut it was ruessaary for hid ta cuasS werx, 'fua evi dence ii eslnr.ad teat tha employee was poisoned by carbon aonoxida gas, in our decision najd: :'is iiie relation of the poisoning tc thi atennslH cu-.tuatLrs or coincident? If c s ura r i v e , or if tr.s stenosis was r.atorially a^aravatsi thereby, Sereriase (plaintiff !s decadent) was en titled to ccmpenaaticn," That ossa must not be taken ae authority for me propose LCin tbit disease, generally peaking, is compauaablB under the .iorksiars'u cooiper.aal ion statute, That holding ue.3 cn tha basis of specific injury at a fixed time, where the elements of mdefinitar.eas and unoerIrtiilty are iliitipid, ,% acaev.r.at kindred situation *r prsSanted in .'.rchibc.ld y, Coisnenaatian Tcrnfflsaloner. 77 7/,,Vi, 4-4ilj where ft workman met death because of mis takingly dr losing poison for water MLie at work. His dependents war* awarded sonpsnsati nn. The Chic , case of Industrial Pommiasicn v. Roth- 82 Ohio 5;, S4C maks3 thia pro position clear, "ns court tners held, that although "occupational dis ease" is not compensable under the statute, tha accidental and unfore seen inhaling by an employes, in tha course of hie employment, ef a specific poison or gas, resulting in injury or death, is not an -occu pational die-ause" and is ionpenaabls. Such is not the sort of situa tion involved in ('.is oaca at bar. iiirsin tns disease is attributable to exposure extend log through a inn:i course of employment. 3o, our special Inquiry is till*: la diseane v;hich is contract ad by an employee turoivn an t.noafifnte period of e.mpluyoi.i;;I. uui'i.po-.io.iV,le under ths -.eric- men's componuabiorr r-mtute? In our opinion disaoaes on .".rising are not comnenodbio under our statute. '''us unoetisfuc tory nature o: t:v results ait and ir.g uoon rC- v ian-e on cooimnn I:-..: sc Mona for radreho o '.vror.ui suffered by employsas through me ns-: L.vie or" emolayeri uus a lihue element of tha evil to be corrac Led ry coir.par.oat ion eeac ti:i' s iri this state end auesaera. ? hot 4 Id system t uns it is dory to bain cnoloyara and er.-.picyesg . The -real ir.i-.es <vf ouch acti baaed or, trauv.aLic injury of 'one sort cr another. Actions baaed on disease wars relatively so lavf m nuauer as not to give urn emu ;a to the necessity of change in the manner or provid ing ccmpsnsa;ion <.<: injured employees anti their dependents, so that mere 15 no cur;; rise on e/.am ins tier uf the sr.ic tin,-, siauas of our work man's cor.csa3atier, act of 12X3 to find therein stated bs a purpose of tne act "to proving a method of compemsat ic - for employees that may e injured, or the dependants of these killed in the course of their em ployment n # it. "-end that, there is no reference in the enacting clause to die ease. AaU 191b, chapter 10. iiony of tha sections of the ori ginal onr.pftr.sfl 11 on wot vrn amended and re-enacted by the legislature of 1315, Acte 1515, chapter 9. The enacting ciou3e there, also, makes special reference ta employees who may ba injured but makes.no reference to employees who may contract disease in the course Of thalr employment, ".'hen one" to apoken of as having beer, pnyaicany injured, t-he.Uiousht conveyed is that he has been hurt or wounded, that through external-.fofee s: he has suffered traumatism. ' '.'f-ii 1. A A n MH Me n COHXIKE CLEMUNO HOUt |MC~ kOOtl LEaH 9nVIGK OlVIftlftli ** THE CflAAOHATIOM T*Vf COMPANY. AU. Rim So that, in sur vU'.v, wh.cn trie legislature nadA provision for workmen's Injured In tho accrue of and resulting from their erinloymant, injury othor '`.nan from disease was the maLLsr to wtilch primary consiflsraUon was being given. ' . . . In the aaviral scotl'me of the, warlossn's eompanaation act1 the words "injury-' or "injuries" aopear frequently. 'fJie cociaiisslonsr nut annually sake a sworn report, to the gossrnof containing "a genarsl state ment of the causes of the aCcLdents lending to the lniurien fnr- which the awards were made/1 Code 1931, 33-1-17; employers not subscribing to the act or in default shall be liable to employc.es for damages "suffarsd oy reason of accidental personal injuries sustained in the course of employment,- and naii not avail themselves or the defense of fellow- ' servant, rules, assumption of risk, or contributory negligence. Coda 23-3-8; compensation shall not bo- paid "on account of tny personal In jury to or death uf any employee caused by a seir-inriictea injury," Cods 23-4-2; rouoonaolc funeral expenses shall be paid "in oaBC the parBonal injury causes death within tha.period of four yoars from the data Of til* original injury * ** (n Code 33-4-4... 1'hese phrases nd nuenrous othar similar onus 1 n tna act indicate that the legislature was in no wise considering diseases arising from occupation extending over an In definite period of time. An internatlng tHsoueoion (ado i.tt ad.1 y obiter) by judgs i.i70ly of the quad lion us to whether occupational disease la compensable under our compensation act appear a in the c3 of Pavla ?,, 0OilPbriuation -t'or.ir' 1 o iioner, L10 TV.7a. 23. He mooted the question but reaciistTno cant ins ion,- Forty-four oiat-va of t.fco union havs enacted workmen' conpan- Jiition lane- Sen funcj 1 Slgsut or Oriaisn ' s ('cmpenns t ion Laws (litn* id. I9s?)r page . . ` vhosa siiiotaonU tind lb; oon-.i -.ruijtion Uiirvof by the courts of the respective states in. regard to occupational .dieease" 3eem to fail into 3ix geuer.il cliseee; (1) occupational ilcoase expressly excluded entirely, or, except as directly e t.t. ri'cuUVo.'.' to accident, 33 states; () occupational disease arising from employment, compensable, ; states: (3) specified and enumerated occupational diseases ccrr.psnsable, 3 states.; (4) disease r.at mentioned by the act but held t.y tha courts not to be compensable t 1 state (t'loh.i; (3) disease not mentioned by the act but nsla by tne courts to be sompensaole, 1 stats CJass,); tv) disease not mentioned in the so* and the question yet' undecided by the court of last resort of the elate as to whether disease la compensable or not, 3 stairs (X,Va.). The tiaeiachuaitis court holds that tile act of that state dees not liUi'.t compensation to injuries by accident but that it "goes boyond tneee llmita and includes such diseases as fairly may be termed person- . fti Injuries," In re Kaggslet. (llass.) 116 N.S. 972, But, afl appears from the decision in that oxse'and Pliiental's Case, (litas.) 127 jfoS. 434. tha court does nor. construe t.h fie-. sn applicable to all rtlseoaan ' which may be attributable to employment. In further discussion of the a,,n act e-ie J;rner v. Imcerial F:irn 1 lure "o.. . (Mich.) 166 943. as airsaiy pointed out, our - ork.taa' s compensation law, en acted in 1911, was in large measure ro-sr.aated in 1915. In 1919 (Acts 1919, chapter 121) therewaS another re-enoc.tr,ent of many of ths BOOtiOha or me compensation law, if it had been the leglGlativa intention to menace disease; occupational cr o them 1 no, within the terms of the sta tute it would have been a simple matter no to declare and not to leave tha matter subject to infirer.ee, A oiniil a.- deduction and the fact of the narrowness of r.ltie of the Michigan set iro emphasized by. the court of t.-.st etuis, Adame v . Acme '"hits Lead etc, '.'fhrks. (inch.) 143 JT..\Vc 485, is above nnt.nrl the titles of tha ;Ye l Vi.-gloa s.t cf 1013 and the aner.d- Story act Of ISlS'nsakB no muntlOn of coetponsatlon for dlseaae. Taking into account tfcsSt aeverul matters, s are of opinion that dieesso, whetntre occupational or others se, is net compenaable under the "'eat Virgina statute, axespt In those inn lances where the dlsescS is attributable t-j a SieoLfic uhd fi-flr.lt* vvnt wiiic); may rsaaona'oly bo cieBaHd as a. pofScnisl injury,, .'his ccr.oluoi.rn as pr-iUh^sd by a atateoeat of Judge fuff.Mtirasi', uiisii ir.g ior one aourc, in coma v aai tn-iicuoririeic ucaatrAietlon Co-# SO 7,`,Va, 159, 93 S,2. 245: "it (the compansatlon actj" nnn^n?^' M. All *nnrt employee irening u, but 3 3ir,t*d: Does ii-s-p, code by i,iie ^orkjaanf3 b-uyee arising fraa l".rs3^:i the nogli r.ad'cle under our - .r&; tbs', section . = '. n`,.a r.o i '..'Jury or death i alAlutue -m in which the , '-.-ie very orkaer'a ac-icpen- :v la further -n,j j :xir express 3 *1 7.QS . -noanlng .t '/.n eouii In st conmon law -.-a-jciAlie Injury .'.y:ry or dlssir.5 no such liar'r.ce-, 3y the -::.:y;s sr.o = e attributable to zy industry ae a 3, (Cc juoatianal eas; of under:/in ra- a* actions :r ii-icing e.ton &cqquAV .y;o;; iia'Dlli: ;;e disease. ; ' * r*; e : " 8 sat- . .; . ur ast , *. a/ no spans' /:r: r ,-oa of .*dploycognizably j , that ic;'- 'aoall \t f or the Cowucacs ALViaiMO IhC-Lao*f L*.r 9cnvt bivi<m th a**r*n41TiH TmJi 0ur.Mv. AL. khnt ki afe34-i?. hi jury or .'i sn '.ii nr /.ny Employee itowevar aeourri ng, " is snecsytlhie Of t'.'io nflnfit.rnctlnin -- tha sno -tuld measure tha ,iorda an they stand dons ` the other ouiu upiraise then in the light o' the other provisions of ' the act, and of the vari mm ce,iU/U.l9s o' Uia situation ao herein ujidartakon to b* discussed, "lz do not share the view that this J,g essentially a legislative natter'and that the above quoted words of the statute must be literally construed and the affect Riven to them which the phrase imports when standing alone. True, the courts must administer the law as it Is written;, and must' not undertake to raaka law., 3ut where a court iu co:if ranted with (two couoLruclioxis--the first destructive of personal rights in that It takes away the means of effec tuating such rights and of obtaining redress for their breach, and tha other not destructive of either rlgiitB or remedies but harmonizing with hestc conceptions of personal ju11 ce--!he latter la preferred. This Is interpreting law, not asking it. The courts will not recognize that there la cn open gap in the law /.here by reasonable interpretation such utidesired condition nan he #vnided- Therefor#, we are of opinion that It was the le^iEiatlv# tr-aset, aa xpr#pod in our vvmptuaabion low ((lode 1921, 23-2-6; Code 1932, sec- 2616) tc exempt employers from liability for damages it common law or by statute for compenBible in jury or aet:; cf employees, however occurring, but not to exempt from liability rar nnn-compvnasbio diasase (oused by negligenc9 of the employer) or death resulting from such diaeasa.. This view is bulwarked u> phi aaouiomy of trie sail section itself. It reiiev&a an employer from liability for ''Injury ar death" of an employee, provided, "tha injured tnpUi,," tj, r t.-rta Ir.eJ in th employer'* service v.Lth nool.Ce that -.re employer c a subiuriber to the workmen'5 compensation fund. Note the language `'Injur" nr death" ami "injured employee". As already discussed, the legislature In making provision in the act for injured wcr:<m$n vpas 5'vir.j.- p.-la^ry c^ne idira t, kr. to injur/ other lii^n dlLae&se. The. phrases "injury or death" and "injured employee" as used in the . said section must therefore be taken to mean an employee who had been hurt. Trauma.' It Is from liability tn him nr his personal represen tative that the statute affords relief., It is urged fot defendants that our case of MaVev v, C. fc P, Tel jto. . lUo W.Ve. 515, {jimnits us to tha proposition as advanced hy tri*t this alfel.utc* toianptu -JmSloj'ii'5 ft"6n liability for any sort of injury or dveth that nay overtake an employee, regardless cf the oeuec. In the cpir.ioa la thn , case judge ruuda, speaking for the court, said: "It .'ic-'.iid scan plain (.bet the legislature Intended to relieve the anlilay-#:' fro:* any wad, all civil rGepon&ibilitiee at oomcon law, grr.win,' out of or in ar.y way connected with the injury or death of an employee in the service of en employer who had fully compiled with the requirements of the. act. The `."orda used clearly Import this." That stntment muol be conaidared in th lltsht sf the fact. af that 4u*- The Case Involved an action of damages by a htiSOand for injuries received by his wife wnile t.n the employment of t telephone company. The injury was compensable undsr the statute and it appeared from the declaration that tha rial wae an v;piov3r within i-ha rtiaanlxig of the eorlcmcn'o compensation law. The declnralion did not allege that the defendant had not elected to comply with the provisions of the compensation law, or, htivlcc orifiuully complied viaa in heiault. ?/& nsld m&t tne declare- lion did no* c'iiom- c. ca#w u^ainfet i-h& defendant, baoaoso it aa prsted- '.E-d from such actions by the terme of the compensation act. At the basis of (It* a, nr. i.is sompscocblc injury, etatementa ir. tha splnisn were made on the*, premise. The court >6} in no wise considering uon- rompensflhla nle&ns# attributable to nogliaonoo of an employer, Tho statement of the court stands unimprachabi# as tc matters to which it was intended to be applicable, but It cannot properly be deemed appli cable to matters not" then under consideration by the court. iluch reliance Is placed by the defendants upon the case of 7.a iachua; v. '.illlard ftorave Battery Co... 106 Ghio t. 000779 t0MMHCI CLfAnl*d MOVit, !HC- lOOIR C*At SERVICE OlVtUOM fll TUR C4*ARATM ' 'r? !?* `HURT C4MPAMT. All SMMV RRaRuvCB ' .' S8J44?. ,' Repts. S.'fl, In support of the propeoition that a literal Interpretation Should he given r.n the exempt lv* language of ttio etatuta undor die- ' ouasion, In so far as the Ohio case may be tafcen aa authority for the . position af the defendants, w are not persuaded thereby that we should employ, a literal and absolute construction of the cords of the statute r Itbout regard to the aovorcil other elomento irhioh trc have discussed in this decision, ' In the light of all of which we are of opinion to affirm the notion of tho trial cour: in overruling the defendants' demurrer to the plaintiff'3 declaration and each count thereof. Affirmed _a 000750